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2004 DIGILAW 752 (PNJ)

Kulwant Singh v. State Of Punjab

2004-07-26

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. Petitioner-Kulwant Singh and Pushpinder Kaur have filed this petition under Section 482 Cr.P.C. for quashing the order dated 4.12.2002 (Annexure P-2) passed by the Sessions Judge, Sangrur, vide which they have been summoned under Section 319 Cr.P.C. to face the trial along with the accused Navdeep Singh (brother of the petitioners) under Sections 363/366/376 read with Section 120-B IPC in case FIR No. 77 dated 21.12.2001, registered at Police Station, Longowal. 2. The aforesaid FIR was registered on the complaint made by one Darshan Singh in which it was alleged that his daughter Dilraj Kaur, who was a student of + 1 in the Govt. Senior Secondary School, Longowal, was kidnapped by accused Navdeep Singh, who is also a student of +2 in the said school by putting her in fear with a view to many her. In the FIR it was also alleged that the petitioners Kulwant Singh and Pushpinder Kaur were also having a hand in the kidnapping of his daughter. 3. During the investigation, both the petitioners were found innocent by the police. Challan was filed only against accused Navdeep Singh and the petitioners were kept in column No. 2. The case was committed to the Court of Sessions being exclusively tried by it and the cognizance of the offence was taken. 4. Subsequently, after examination of the four witnesses, namely, PW1- Darshan Singh (Complainant), PW2-Harbans Singh, PW-Dilraj Kaur (Prosecutrix) and PW4-Baljit Singh, the prosecution filed an application under Section 319 Cr.P.C. for summoning of the petitioners for the alleged offence. PW2-Harbans Singh and PW4-Baljit Singh who were the alleged eye-witnesses, have deposed that the petitioners were forcing the prosecutrix Dilraj Kaur to enter the train and exhorting Navdeep Singh that she was a very beautiful girl of the town and he should kidnap her and they would manage the affairs. The said application of the prosecution was dismissed by the Court of Sessions because in her statement as PW3, the prosecutrix nowhere stated that the petitioners Kulwant Singh and Pushpinder Kaur met her or accompanied Navdeep Singh or they forced her to enter the train. She neither named any of the petitioners nor any overact was attributed to them. The said application of the prosecution was dismissed by the Court of Sessions because in her statement as PW3, the prosecutrix nowhere stated that the petitioners Kulwant Singh and Pushpinder Kaur met her or accompanied Navdeep Singh or they forced her to enter the train. She neither named any of the petitioners nor any overact was attributed to them. It was further found that the testimony of PW1, father of the prosecutrix in this respect appears to be quess work because he nowhere stated that both the petitioners committed any act for accompanying his daughter. After consideration the statements of the aforesaid four witnesses, it was found by the Sessions Judge that there was no worthwhile evidence against the petitioners for summoning them under Section 319 Cr.P.C. to face the trial alongwith the other accused. Hence, the application under Section 319 Cr.P.C. moved by the prosecution was dismissed vide order dated September 24, 2002. 5. After the aforesaid order, the prosecution examined one more witness, namely Jagroop Singh PW5. It is submitted that the said witness was not cited as a witness by the prosecution in the list of witnesses. The stand taken by the prosecution is that the said witness though examined by the police under Section 161 Cr.P.C. but earlier he could not be cited as a witness. His statement was subsequently supplied to the accused. It is submitted here that the said statement recorded by the police did not form part of the final report submitted by the police under Section 173 Cr.P.C. This witness Jagroop Singh has deposed that on 28.11.2001 at about 6.00 p.m. he alongwith Baljit Singh went to a shop to purchase some goods. There, he saw Navdeep Singh accused and both the petitioners who were talking with each other. He also deposed that both the petitioners were asking accused Navdeep Singh that he should abduct Dilraj Kaur and get married with her as she was the most beautiful girl in Longowal town. He further deposed that both the petitioners were asking accused Navdeep Singh that if she did not give her consent for marriage, he should do it by way of threatening her. Both the petitioners also assured accused Navdeep Singh that they would protect him from arrest. This witness further deposed that when he and Baljit Singh came nearer to the petitioners they stopped talking. 6. Both the petitioners also assured accused Navdeep Singh that they would protect him from arrest. This witness further deposed that when he and Baljit Singh came nearer to the petitioners they stopped talking. 6. On the basis of aforesaid statement, the prosecution filed second application under Section 319 Cr.P.C. for summoning the petitioners as an additional accused. The said application was allowed by the Sessions Judge, Sangrur vide order dated December 4, 2002. Aggrieved against the said order the petitioners have filed the instant petition. 7. After hearing the learned counsel for the parties and perusing the record of the case, I am of the opinion that the impugned order is not sustainable. 8. The legal position regarding summoning an additional accused on an application under Section 319 of the Code, to face trial is well settled. The basic requirement for invoking this Section as held by the Honble Apex Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr., A.I.R. 2000 S.C. 1127 : 2000(2) R.C.R. (Criminal) 75, is that it should appear to the Court from the evidence collected during the trial or in the inquiry that some other person who is not arrainged as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt from the evidence about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. Firstly that the other person has committed an offence and secondly that for such offence that other person could also be tried alongwith the already arrainged accused. But it always remains the discretion of the Court as the legislation has used the words "the Court may proceed against such person". The discretionary power so conferred should be exercised by the Court only to achieve the criminal justice. It is not that the Court should turn against the person whenever it comes across the evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. 9. It is not that the Court should turn against the person whenever it comes across the evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. 9. In the instant case, the first application filed by the prosecution under Section 319 Cr.P.C. for summoning the petitioners as additional accused was dismissed after considering the statements of PW-1 Darshan Singh (complainant), PW2-Harbans Singh PW3-Dilraj Kaur (prosecutrix) and PW4-Baljit Singh. The statement of PW5-Jagroop Singh is similar to the statement of PW4-Baljt Singh, which was considered at the time of passing of the earlier order. This statement of Jagroop Singh will not improve the case of the prosecution particularly when the prosecutrix herself and her father himself could not depose anything against the petitioners. On the basis of this evidence, in my opinion, the petitioners could not have been summoned as additional accused under Section 319 Cr.P.C. at this stage when the main witnesses have not supported the prosecution version. The evidence in the shape of statement of PW5-Jagroop Singh is not sufficient to summon the petitioners and on the basis of the statements of the said witnesses, the conviction of the petitioners is not possible, particularly in view of the statement made by the prosecution witnesses. 10. In view of the aforesaid this petition is allowed and the impugned order dated 4.12.2002 (Annexure P-2) passed by the Sessions Judge, Sangrur, vide which both the petitioners have been summoned to stand trial is quashed.